MEDIA

Custodial Interrogation, Vaccination, Illegal Detention

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Frederic Block, finding that defendant was in “custody” during his interrogation at JFK Airport, suppressed the statements he made because he had not received timely Miranda warnings. Judge Arthur D. Spatt denied a motion for a preliminary injunction allowing plaintiff’s minor children to attend a Jewish school pending her lawsuit challenging New York’s vaccination requirements. And Judge Jack B. Weinstein awarded damages to a U.S. citizen illegally detained as an alien by Immigration and Customs Enforcement.

Custodial Interrogation

In United States v. Morla, 15 CR 332 (EDNY, Feb. 12, 2016), Judge Block rejected the government’s argument that defendant was not in custody when, without prior Miranda warnings, he made statements to Customs and Border Protection (CBP) officers at JFK Airport. His statements were therefore inadmissible at trial.

Defendant was indicted for bulk cash smuggling, 31 U.S.C. §5332(a). The evidence at a suppression hearing showed that in June 2015 defendant boarded a flight to the Dominican Republic at JFK Airport. Acting on information from CBP personnel, Officer Raio and a second officer boarded the flight and instructed defendant to walk off the plane into the jetway to answer questions.

Once in the jetway, Officer Raio told defendant he could “carry as much money as he wanted out of the country,” but “anything over $10,000 had to be reported on a form.” The total currency, the officer explained, included everything on defendant’s person and his checked baggage. Defendant said he had $6,000 in cash.

The officers gave defendant a form reiterating the same explanations. Officer Raio told him it would be unlawful to state falsely the amount of money he was traveling with. Defendant declared $6,000 on the form and presented about $6,300 for verification.

CBP officers then called Officer Raio to tell him they had recovered $370,830 in U.S. currency in defendant’s checked bags.

Officers in the jetway handcuffed defendant. Officer Raio told him that he would be taken to a CBP office and the handcuffs were a safety measure. When they reached the office, the handcuffs were removed and defendant was directed to sit on a bench.

Cuffing his left arm to the bench, the officers began the interrogation leading to the statements that were the subject of the suppression motion. Officer Raio questioned defendant with two other CBP officers in the room. After saying he was a janitor at a bar, defendant said he was a janitor at a country club. When asked where the large sum of money came from, defendant said he found it on a street corner in a brown paper bag. He added that, as soon as he found the money, he booked the trip.

Another officer then asked substantially the same questions. The entire session lasted 15 minutes. CBP officers called Homeland Security Investigations (HSI). HSI Special Agents arrived, took defendant to another room and gave him his Miranda warnings. Defendant asked for an attorney, and questioning ceased.

The issue here was whether defendant was in custody when he made statements in the CBP office. That depends on whether a reasonable person in those circumstances would have felt subjected to restraints comparable to a formal arrest. Slip op. 6.

As Block noted, some factors point toward a noncustodial interrogation—particularly, the context of border crossings, where travelers expect some restraints as well as the kinds of questions asked here, which are routine in currency examinations at a border.

But other factors weigh more heavily in favor of a “custody” finding—the removal of defendant from the plane, the use of handcuffs as he was transported to a CBP office building, the presence of multiple CBP officers escorting him to an interrogation room, and the officers’ instruction to defendant to sit on a bench to which they handcuffed his left arm. Slip op. 7. The statements made from that point on had to be suppressed.

The government cited no decision where handcuffs were used as they were here and the defendant was held not to be in custody for Miranda purposes. Slip op. 7-10.

Challenge to Vaccination

In NM v. Hebrew Academy Long Beach, 15 CV 7004 (EDNY, Jan. 9, 2016), Judge Spatt declined to grant a preliminary injunction seeking to direct Hebrew Academy to permit plaintiff’s children to attend the Academy, without receiving vaccinations, during the pendency of her lawsuit challenging New York’s requirement that school-aged children be vaccinated against certain communicable diseases.

On behalf of herself and her two minor children, plaintiff had brought this lawsuit alleging violations of various state and federal laws, including claims based on the First, Ninth and Fourteenth Amendments. The named defendants include the Academy, its president, other high-ranking personnel, and certain New York state officials.

Section 2164 of the New York Public Health Law requires that school-aged children be immunized against specified diseases, with medical and religious exemptions. Plaintiff, an Orthodox Jew, has not vaccinated her three daughters. The Hebrew Academy granted religious exemptions from vaccination to plaintiff’s daughters in 2010 and 2012. Plaintiff alleged that in 2015, the Academy instituted a new policy to deny religious exemptions. The Academy disputed that allegation. After a measles outbreak in California, the Academy did change its procedures for assessing exemption requests and, as part of its new reevaluation process, began to scrutinize the reasons parents gave for seeking religious exemptions.

During the reevaluation process, plaintiff and her husband met with the Academy’s president, its executive director and a pediatrician. They questioned her about Jewish law and any prohibition against vaccinations. Plaintiff and her husband said that their decision to guard their children’s health fit within their religious beliefs. At the meeting plaintiff said she believed that the best way to protect her children was through diet and she did not want to introduce foreign substances into their bodies. This led the school personnel to conclude that plaintiff did not want her children vaccinated based on health concerns and not sincere religious convictions. The Academy thus rejected plaintiff’s application for a religious exemption and excluded her children from the school because her reasons for not vaccinating her children were “health-based concerns couched as religious doctrine.” Slip op. 13. Plaintiff has home-schooled her children since October 2015.

Following a hearing, Spatt looked at the elements required for a preliminary injunction, concluding first that the exclusion of the children from attending classes caused irreparable harm to them. However, plaintiffs had not shown a clear or substantial likelihood of success on the merits. Although the court found plaintiff’s beliefs to be “real, and understandable,” the record showed that “these beliefs were formed with a primary view toward children’s health, and not their religion. In this regard, the record clearly does not support a finding that Orthodox Judaism, even as interpreted by these particular Plaintiffs, forbids the practice” of vaccination. Slip op. 23.

The evidence further showed that only a few of the 1,700 Orthodox Jewish students at the Hebrew Academy interpreted Judaic law as prohibiting vaccinations. Plaintiff’s personal belief was to rely primarily on the Torah’s commandment to guard the body against disease. In Spatt’s view, “these facts indicate selective personal beliefs against the practice of vaccinating, not fundamental religious beliefs,” and plaintiff’s concerns about vaccination were “substantially health-based.” Slip op. 24-25.

Citizen Detained as Alien

In Watson v. The United States, 14 CV 6459 (EDNY, Feb. 25, 2016), Judge Weinstein fixed damages for Davino Watson, a U.S. citizen wrongly detained as an alien. (Denial of the government’s motion to dismiss or for summary judgment in this matter was reported in this column on Dec. 13, 2015.)

Although Watson was wrongly detained for 1,273 days, Weinstein had previously found that he could recover damages for only 27 days of false imprisonment because that was the length of time in which it was not reasonable for the government to refuse to recognize that he was a U.S. citizen. His citizenship depended on how he was viewed under the law in Jamaica where he was born to parents who never married.

Determination of Watson’s U.S. citizenship turned on how he was viewed under the law in Jamaica, where he was born to parents who never married. Under U.S. law, Jamaicans in the U.S. who were born illegitimately cannot establish citizenship in the U.S. under the provision Watson relied upon unless they were ‘legitimized,’ or recognized as legitimate, under Jamaican law. Because Watson had been legitimized under Jamaican law as it existed at the time of his detention, he had acquired U.S. citizenship, prior to his detention, by virtue of residing in the United States, as a minor and a legal resident alien, with his legal resident alien father.

The information Watson gave to the U.S. Immigration and Customs Enforcement (ICE) would have confirmed his claim of U.S. citizenship, but ICE overlooked that information and rejected his claim. Twenty seven days into his detention, Jamaican law regarding legitimization changed. Officials reviewing his situation thereafter concluded that, under the new Jamaican law, he was not a U.S. citizen, and decisions by the U.S. Court of Appeals for the Second Circuit and by the Board of Immigration Appeals (BIA) supported this conclusion.

On a subsequent pro se appeal by Watson, the Second Circuit directed that pro bono counsel be appointed for him. ICE released Watson upon discovering that he had been a citizen at the time of his initial detention, and BIA subsequently clarified that it should not have relied upon the change in Jamaican law to uphold Watson’s detention, since that change was prospective and Watson had become a citizen before it took effect.

Watson was entitled to damages only for the 27 days from the date of his initial detention to the date of the change in Jamaican law, because his continued detention after the latter date, though mistaken, was reasonable in light of the Second Circuit and BIA decisions.

The government offered three defenses under the Federal Tort Claims Act, 28 U.S.C. §§2671, et seq. (FTCA), to avoid damages for the 27 days. First was the “due care” exception, which exempts from liability under the FTCA any “claim based upon an act or omission of any employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid….”

Second was the “discretionary function” exemption, which forbids liability under the FTCA for acts that involve an element of judgment or choice, and are grounded in considerations of public policy or susceptible to policy analysis. Weinstein found that both of these defenses failed because the government was not acting under any statutory right or exercising any discretionary judgment for the 27 days in question. Rather, because it had not acquired accurate information that was available to it, it simply failed to recognize that, under the law that then applied, Watson was a U.S. citizen. Slip op. 29-32.

The government’s third defense, under the “intentional tort” exception, had been rejected by Weinstein in an earlier decision and was, in any event, inapplicable. The “intentional tort” exception operates to prevent many intentional torts committed by government employees from being asserted against the United States under the FTCA. It did not apply because there was no evidence of intentional misconduct by the defendant officials. Slip op. 33.

Upon review of comparable cases submitted by both sides, Weinstein determined that Watson was entitled to $15,000 for false arrest, and $67,500 for the 27 days of false imprisonment, consisting of $2,000 per day for loss of liberty and $500 per day for emotional injury. Slip op. 46-49. “In the interests of judicial efficiency, in the event that the Court of Appeals concludes this court erred in limiting damages to false arrest and 27 days of false imprisonment,” Weinstein made an additional finding that the same $2,500 per diem should apply to any longer period of damages that might be found for the 1,273 days of detention. Slip op. 49.

Finally, Weinstein found that the deprivation of Watson’s constitutional rights would support $3,911 in nominal damages, Slip op. 42, but did not include these in the award because nominal damages were not necessary in light of the “significant sum” awarded in actual damages. Slip op. 49.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.